[2016] FWCA 2416

The attached document replaces the document previously issued with the above code on 18 April 2016.

Reference numbers have been corrected.

The Publication number AE418604 is changed to AE418613

The print code has been change from PR579106 to PR579150

Dean Berman

On behalf of Chambers of Commissioner Gregory

Dated 20 April 2016

[2016] FWCA 2416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SalesForce Australia Pty Ltd T/A Salmat Contact
(AG2016/2598)

SALMAT CONTACT ENTERPRISE AGREEMENT

Contract call centre industry
COMMISSIONER GREGORY	MELBOURNE, 18 APRIL 2016

Application for approval of the Salmat Contact Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Salmat Contact Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SalesForce Australia Pty Ltd T/A Salmat Contact. The Agreement is a single enterprise agreement.

[2] The application and the Employer’s Statutory Declaration indicates that the proposed Agreement is intended to cover 188 employees, all of whom are engaged as permanent employees in the contract call centre industry.

[3] The application provides a detailed comparison between the entitlements under the Agreement with those in the Contract Call Centre Industry Award 2010. I note that many entitlements under the Agreement are equal to those in the modern award. Most notably:

All wage rates

Shift loadings

Overtime

[4] The applicant declared that there are several more beneficial entitlements in the agreement, such as an increased entitlement to redundancy pay after 9 years of service and an entitlement to 2 paid 15 minute breaks in a 7.5 hour shift. The applicant argued that these increased entitlements compensate employees for the loss of annual leave loading in the Agreement. In doing so, the applicant has provided financial analysis which attempts to demonstrate that the additional paid tea breaks properly compensates for the loss of annual leave loading.

[5] Given the pay rates are equal to those in the modern award I sought further information from the applicant with regards to how the effect of reducing annual leave loading was explained to employees.

[6] The applicant relevantly provided the following information:

In relation to the paid tea breaks during employee briefings employees were advised that they would retain their right to paid tea breaks under the new agreement when compared with the old agreement. Employees were also advised that the Agreement applied to the exclusion of any Award. During bargaining meetings in response to a reference to paid leave loading being applicable under the benchmark Award Salmat discussed with bargaining representatives that under the current agreement paid tea breaks are provided instead of paid leave loading and this position was noted and accepted.

Consideration

[7] In considering an application for approval of an enterprise agreement s.186(2) of the Act requires that, inter alia, “the agreement passes the better off overall test.” Section 193 continues to state:

“(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.” 1

[8] It has been held in a number of Full Bench Decisions before the Commission that the better off overall test is a global assessment of whether any deficiencies are outweighed by more beneficial provisions of the Agreement, rather than a line by line assessment. 2

[9] On this basis, and in the circumstances before me in this matter, I am satisfied that notwithstanding reductions to annual leave loading and the entitlements outlined above that are equal to the relevant reference instrument, there are adequate beneficial entitlements that mean that employees will be better off overall.

[10] Consequently, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[11] The National Union of Workers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 April 2016. The nominal expiry date of the Agreement is 25 April 2019.

COMMISSIONER

1 Fair Work Act 2009, s.193

2 AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833, [44]

Printed by authority of the Commonwealth Government Printer

In the case of SalesForce Australia Pty Ltd T/A Salmat Contact, the Fair Work Commission was tasked with approving an enterprise agreement. The agreement in question was between the employer, SalesForce Australia, and the employees represented by the Retail and Fast Food Workers Union. The dispute centred around whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009 and if it provided fair and reasonable terms and conditions for the employees. The Commission's role was to ensure that the agreement was not contrary to the public interest and that it adhered to the principles of the Act.

The primary legal issues the Commission had to address were whether the agreement adequately covered the mandated minimum terms and conditions, and if it was free from any illegal content or provisions that would undermine the core rights of employees. Additionally, the Commission needed to determine if the agreement had been genuinely negotiated between the parties and if it provided for appropriate mechanisms for dispute resolution. The Commission also considered whether the agreement provided fair and reasonable terms, particularly in light of the economic context in which the agreement was negotiated.

After thorough examination, the Fair Work Commission concluded that the Salmat Contact Enterprise Agreement met the statutory requirements. The Commission found that the agreement contained all the mandated minimum terms and conditions and did not include any illegal content. Furthermore, the Commission was satisfied that the agreement was genuinely negotiated and provided for appropriate dispute resolution mechanisms. In assessing whether the agreement provided fair and reasonable terms, the Commission considered the economic context and concluded that the agreement was fair and reasonable for the employees. Based on these findings, the Commission approved the agreement.

Consequently, the Fair Work Commission approved the Salmat Contact Enterprise Agreement, effective from the date of the decision. The agreement now provides the terms and conditions of employment for the employees of SalesForce Australia, as represented by the Retail and Fast Food Workers Union.

SalesForce Australia Pty Ltd T/A Salmat Contact

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established